Warn supervisors: Don’t comment needlessly on race

The selection process is over, and the newly promoted employee has begun work. Now is not the time for those involved in the hiring process to pontificate on racial balance in the workplace.

That’s especially true if the applicants were all qualified for the position and a member of a majority class was selected over minority candidates.

Here’s why: By commenting on the racial makeup of the pool and the promoted candidate, management may inadvertently hand powerful ammunition to the candidates who didn’t get the job.

When a white candidate is selected over black candidates, comments such as “We do have to maintain racial balance” and “We could have had a larger pool of qualified whites” are direct evidence of discrimination. That shifts the burden to the employer to prove it would not have promoted the rejected candidates even if the now-presumed discrimination had not been a motivating factor.

Recent case: Beverly Taylor and Rena Childress, who are black, applied for a school counselor position. Both were qualified for the job. A selection panel that included three black members ranked another black candidate as their first choice based on their interviews. Then the panel results were canceled when another school counselor position opened up.

The school system then convened a new panel—this time with just one black member—which chose a white candidate based on another round of interviews. When Taylor and Childress complained, a supervisor commented that the district had to maintain a racial balance, but could have done more to bring in more qualified white candidates.

The 6th Circuit said such comments are direct evidence of discrimination, shifting the burden of proof to the employer. It ordered a trial, and the employer will have to convince a jury it would not have hired Taylor or Childress if race were not a factor. (Taylor, et al., v. Board of Education of Memphis Schools, No. 05-6460, 6th Cir., 2007)